Harrison v Secretary of State for Communities & Local Government
| Jurisdiction | England & Wales |
| Judge | His Honour Judge McKenna: |
| Judgment Date | 16 December 2009 |
| Neutral Citation | [2009] EWHC 3382 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2437/2008 |
| Date | 16 December 2009 |
[2009] EWHC 3382 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
IN THE MATTER OF PARTS VII AND XII OF THE TOWN AND COUNTRY PLANNING ACT 1990
Birmingham Civil Justice Centre
33 Bull Street, Birmingham B4 6DS
His Honour Judge Mckenna
Case No: CO/2437/2008
Timothy Jones (instructed by Eversheds LLP) for the Appellant
Daniel Kolinsky (instructed by Treasury Solicitor) for the First Respondent
Colin Crawford (instructed by Simon Goacher, Head of Legal and Democratic Services) for the Second Respondent
Hearing dates: 25 November 2009
Introduction
This is the hearing of the Appellant's appeal under Section 289 of the Town and Country Planning Act 1990 against the decision of the First Respondent's Inspector dated 12 February 2008 to uphold, with corrections and variations, an enforcement notice in respect of land at Senna Green Farm, Senna Lane, Antrobus, Northwich, Cheshire CW9 6BE (“the Appeal Site”) alleging a breach of planning control in respect of the unauthorised change of use of land from agricultural use to a mixed use of agricultural and the processing of animal by-products within Use Class B2.
The Second Respondent is the Local Planning Authority with responsibility for the area within which the Appeal Site is situated.
Permission to proceed with the appeal was granted by Lloyd-Jones J on 6 June 2008.
Background
On 15 April 2005 the Second Respondent issued an enforcement notice (“the EN”) in respect of the Appeal Site alleging a breach of planning control namely:
“Without the benefit of planning permission the unauthorised change of use of the land from agricultural use to a mixed use of agricultural/industrial processing and manufacturing of animal by-products and pet foods and retail sale of the same”.
The Appellant together with Rosemary Harrison and Mark Harrison appealed against that notice under Section 174 of the Town and Country Planning Act 1990 (“the 1990 Act”) as amended by the Planning and Compensation Act 1991 (“the 1991 Act”). The Appellant's appeal proceeded on the grounds set out in Section 174 (2) (a), (d), (f) and (g) of the 1990 Act. By virtue of Section 177 (5) of the 1990 Act, as amended by the 1991 Act, the Appellant was deemed to have made an application for planning permission in respect of the matter stated in the EN as constituting a breach of planning control.
An Inspector, Mr Alan Upward BA (HONS), MCD MRTPI (“the Inspector”) determined the appeal. The inquiry exceeded its original time allocation of 25 to 28 September 2007 resuming on 28 to 30 November 2007. The Inspector issued his decision letter (“DL”) on 12 February 2008. A copy of the DL is at pages 38 and following in the bundle. In the DL, the Inspector amended the allegation of breach of planning control to state “without planning permission, the change of use of the land from agriculture to a mixed use of agriculture and the processing of animal by-products would be Class B2”. He also amended the area covered by DL as can be seen on the plan at page 62 of the bundle. He allowed the appeals in part on ground (f) and (g) but otherwise upheld the EN.
This appeal is brought in respect of the decision under the ground (a) Appeal only and the deemed application for planning permission. No issues arise in respect of the appeals under the grounds (d), (f) and (g).
The relevant section of the EN relating to the ground (a) appeal appears at paragraphs 89 to 122. The Inspector found that the principle of the use was acceptable in the green belt and that consideration should not proceed on the basis of the use being subject to the negative green belt presumption. He then went on to identify the main issues as being:-
? The impact upon the standard of amenity enjoyed by occupants of residential properties in the neighbourhood, particularly with regard to odours;
? The implications of traffic generated by industrial use of the local Road network and amenity; and
? Whether any continuing harm from these matters was outweighed by waste management, commercial and employment advantages of the use.
There is no challenge to this identification of main issues in these proceedings.
The Inspector's overall conclusions are summarised at paragraph 122 of the DL as follows:-
“I consider that odour arising from the industrial processing has caused very significant harm to the amenity of people living in the area. Continuation of harm at an unreasonable level is very likely notwithstanding the IPPC controls now available. Senna Green is an unsuitable location for the processing use. The effects of goods vehicle traffic adds some weight to this conclusion. The advantages of the development at this site as a waste management mechanism or a supporter of the locally based farming businesses are insufficient to outweigh the serious continuing harm to amenity which the processing of poultry by-products causes as a matter of conflict with local plan policies BP1 and GS6. Conditions of planning permission, as discussed during the inquiry, could not remove or sufficiently reduce the problems. The ground (a) appeal will therefore fail, and planning permission be refused”.
In order to reach his decision in respect of the amenity issue the Inspector had to consider the relationship between the planning regime and the Integrated Pollution Prevention Control (“IPPC”) regime namely the Pollution, Prevention and Control Act 1999 and the Pollution, Prevention and Control Regulations 2000 together with relevant Government advice in respect thereof.
The Government advice on the relationship between the planning regime and the IPPC regime is contained in Planning Policy Statement 23: Planning and Pollution Control (“PPS 23”), relevant extracts of which for the purposes of this appeal are as follow:-
“2. This statement advises that:
• Any consideration of the quality of land, air or water and potential impacts arising from development, possibly leading to impacts on health, is capable of being a material planning consideration, insofar as it arises or may arise from or may effect any land use;
• The planning system plays a key role in determining the location of development which may give rise to pollution, either directly or indirectly, and in ensuring that other uses and developments are not, as far as possible, effected by major existing potential sources of pollution.
• The controls under the Planning and Pollution Control regimes should complement rather than duplicate each other…
10 The planning and pollution control systems are separate but complementary. Pollution control is concerned with preventing pollution through the use of measures to prohibit or limit the release of substances to the environment from different sources to the lowest practicable level. It also ensures that ambient air and water quality meet standards that guard against impacts to the environment and human health. The planning system controls the development and use of land in the public interest. It plays an important role in determining the location of development which may give rise to pollution, either directly or from traffic generated, and in ensuring that other developments are, as far as possible, not affected by major existing, or potential sources of pollution. The planning system should focus on whether the development itself is an acceptable use of the land, and the impacts of those uses, rather than the control of processes or emissions themselves. Planning authorities should work on the assumption that the relevant pollution control regime will be properly applied and enforced. They should act to complement but not seek to duplicate it.”
Summary of Issues
The Appellant contends that the Inspector erred in his approach to the relationship between the planning regime and the IPPC regime. In particular the Appellant contends:
(a) That the Inspector departed from the advice in paragraph 10 of PPS 23 without explaining that he was doing so or giving reasons for so doing contrary to the approach advocated by Woolf J as he then was in EC Gransden & Co -v- Secretary of State [1987] 54 B and CRF 86 in which he stated:-
“.. if a body was going to depart from the policy, it had to give clear reason from not doing so in order that the recipient of its decision would know why the decision was being made as an exception to the policy and the grounds upon which the decision is taken.”
(b) That the Inspector failed to follow or give notice of his intention to depart from the consensus of experts as set out in Statement of Ground between David Green and Stuart Clayton dated 27 November 2007 a copy of which is at pages 63 and following in the bundle. In particular the Appellant relies upon the following passages from that document:-
“The site's “IPPC” permit it now issued. It contains conditions relating to all IPPC considerations. It must be assumed that the conditions will be implemented by the operator and enforced by the local authority to meet BAT1 and IPPC guidance standards …
The control and abatement of odours, including the use of BAT and guidance, is an incremental process. The condenser and boiler modifications being undertaken need to be indicative of BAT and there would be an expectation that the odour impact standards will be achieved.”
In short, the position of the Respondents is that:
(a) The Inspector did not depart...
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